Is Rape a Hate Crime?

Gender-motivated violence continues to be a social problem of global proportions. A recent report by the World Health Organisation estimated that 35 per cent of all women globally experience physical or sexual violence at the hands of a current or ex-partner. Data from the Crime Survey for England and Wales has also estimated that there are between 366,000–442,000 sexual offences committed against women each year. The disproportionate number of sexual offences that are committed against women has meant that gender has been considered a ‘risk factor’. It is by no means new to feminist discourse to highlight the gendered dynamics of violence against women (VAW) including sexual offences. Sexual violence has, in particular, been conceptualised as acts which are intended to subjugate and subordinate women, while simultaneously enforcing a male-dominated social hierarchy.

Despite the gendered nature of most forms of VAW, this area of legal and criminological scholarship has remained distant from another burgeoning policy domain – that of ‘hate crime’. This is a notable omission when we consider the targeted and often bias motives involved in such offences. For instance, the Law Commission was recently asked by the Ministry of Justice to consider the possible extension of the legislative framework on hate crime to include sexual orientation, disability and transgender identity within the current aggravated offences prescribed under sections 29–32 of the Crime and Disorder Act 1998. Yet no mention was made of gender-based hostility. This is despite the fact that there have been a number of high profile cases of crimes committed against women which have highlighted pervasive forms of gendered prejudice. For example, last year Caroline Criado-Perez, a free-lance journalist who had advocated for more women to be represented on bank notes, was subjected to a campaign of online abuse with one “troll” threatening to both rape and kill her. The case illustrates the presence and continued willingness of many to vocalise their disdain of any woman who represents a threat to our male-dominated society. More recently, television personality and journalist Vanessa Feltz revealed that she had been sexually assaulted by Rolf Harris. Again, she too received online abuse about her experiences of victimisation which fed directly into gendered perceptions about the expected behaviour of women.

It is not just online abuse which demonstrates the gender bias that is present in many offences committed against women. In the UK on 25 February 2008, Levi Bellfield was convicted of the murder and abduction of Milly Dowler, who was 13 years old at the time of the incident. Bellfield’s history of violence against women is believed to go back many years, with police suggesting that he may have been responsible for around 20 unsolved crimes against women, including rape. During the sentencing of Bellfield for the murder of Milly Dowler, the judge described Bellfield’s attacks to be the result of ‘unreasoning hatred’ towards women. Acquaintances spoke of his intense loathing of women who had dyed blond hair, calling them ‘sluts’, ‘impure’ and who ‘deserved to be messed around with’.

These cases, and thousands like them, are likely to have the effect of instilling fear in other women that they too will be victimised. Rape and other processes of violence directed against women are used to keep women in a state of fear, much in the same way that violence directed towards gay and lesbian people, religious groups and racial minorities work to keep them in ‘their place’.The risk of sexual violence (and other forms of gendered violence) is exacerbated by both its persistent and repetitive nature. It is therefore not surprising that sexual violence can have deleterious physical, emotional and social impacts on those who are targeted.

In many ways, the emotional experiences of survivors of rape are similar to those who experience hate crime victimisation. Although the sexual nature of much gendered violence is different in nature to a physical racist assault, many of the psychological impacts are strikingly similar. For example, research in the UK and the US has found that victims of hate crime are more likely to experience emotional harms such as anxiety and depression for extended periods of time beyond. The enhanced traumas caused by hate crime can be partly explained by the fact that such incidents attack a victim’s individual identity. Every hate crime conveys a symbolic message to both the victim and others like him or her. It expresses disdain for the victim’s identity traits and, as such, actively undermines the victim’s social worth within the community.

Notwithstanding these conceptual and consequential similarities, the fact that various forms of VAW may fit within current conceptions of hate crime does not necessarily mean that such offences should be brought within this new(ish) policy domain. The purpose of hate crime law is to protect those groups which have historically experienced disproportionate levels of targeted abuse. The law is used, not only as recognition of the enhanced levels of harm that such incidents cause, but as an important source of state-expressed denunciation. The messages contained within hate incidents are, in turn, met with the symbolic messages of the law. An important question to ask, therefore, is whether the inclusion of gender within hate crime law will help to ‘erode’ the patriarchal environment which supports the acceptance of gendered violence and the culture of blame attached to its victims.

Pervasive forms of victim blaming is certainly worthy of further attention. According to a study carried out by Amnesty International, 26 per cent of the respondents believed that if a woman was wearing provocative or sexy clothing, then she was totally or partially responsible for being raped. Of equal concern is that out of the relatively small number of perpetrators that do face prosecution, an even smaller number end up facing conviction. Currently the conviction rate remains low at 6.5 per cent. The reasons why cases do not result in a conviction have been linked to both individual and institutionalised misconceptions of rape, such as stereotypes, bias and prejudice towards the alleged rape victim – all of which are gendered. A number of studies have shown that the acceptance of ‘rape myths’ remains prevalent amongst members of the public (and jurors); such as that ‘real rape’ is committed by a stranger; that a prior sexual relationship with the alleged perpetrator implies consent; that intoxicated women want to be raped – or are at least to blame for their rape– false allegations of rape are common; that rape is an expression of sexual desire; and that a real rape victim will tell someone immediately about the incident. These misconceptions, as well as negative attitudes towards rape victims, can undermine the credibility of the rape complaint, increase the police’s propensity to ‘no-crime’ rape complaints and therefore hinder the chances of a conviction.

What these studies tell us is that current legislation aimed at tackling sexual violence has yet to effectively challenge the high levels of rape committed against women or the negative social attitudes surrounding rape victims. It is likely that ‘rape myths’ and ‘rape myth acceptance’ continue to blight the successful prosecution of many rape offenders.

One way in which rape, and potentially other types of gendered violence, can be re-framed is through the law of hate crime. By including gender within hate crime legislation, many offences of rape would be understood, not just as acts of sexual abuse, but as acts of prejudice used against women to oppress, subordinate and control them. Such a reorientation of causation could help to diminish the perceived ‘responsibility’ of victims by shifting emphasis onto the offender’s wrongful, immoral and discriminatory conduct. There is the potential, therefore, for hate crime law to directly challenge those ‘rape myths’ that continue to undermine the effectiveness of sexual offences legislation. For instance, in the case of acquaintance rape where the rape complainant knows the offender and/or has initiated non-intercourse intimacy, police and prosecutors may not see any point in building the case due to a disbelief and/or lack of credibility towards the complainant; despite these factors having little bearing on whether the victim consented or not. By focusing on the violent conduct of the offender and his motive – i.e. to penetrate the victim’s vagina, mouth or anus without her consent while demonstrating hostility against her gender – the legal system may well become less interested in the victim’s conduct and the artificial context of the relationship between rapist and victim. An important step would be to divorce sex from rape where possible and with it eradicating the myth that rape is the result of a misguided sexual desire.

This is not to say that rape (or other types of gendered crimes) should be relabelled wholesale as ‘hate crime’. Rather, certain offences such as rape or domestic violence could, in certain circumstances, become labelled additionally as ‘hate crime’ where there is clear evidence of gender hostility. In fact, the failure to include the option for ‘gender aggravated’ rape under UK hate crime legislation ignores the evidence that rape affects women collectively as a group, similar to those groups currently included under hate crime laws. Furthermore, exclusion may actually perpetrate the myths surrounding why men choose to rape women. In other words, the state’s refusal to acknowledge gendered violence as gendered ‘hostility’ may actually send an unintended counter message that gendered crimes are not gendered at all. This, in turn, feeds directly into misogynistic beliefs about women being partly to blame for their own victimisation.

This article also appears the LSE British Politics and Policy Blog: http://blogs.lse.ac.uk/politicsandpolicy/rape-hate-crime/